Op-Ed: Denying due process for campus sex assault cases
No longer content to deny due process to accused university students in the wake of often unsubstantiated and frequently false charges of sexual harassment and assault, there is now a movement toward destroying any hope for these students to transfer to other colleges and universities. On Dec. 8, Rep. Jackie Speier, California Democrat, introduced a bill requiring transcript notation for those students who try to transfer to other colleges or universities after being found “responsible” for violations of Title IX policies on sexual harassment and assault.
Creating a new “check the box” requirement specifically for the transcripts of the (mostly) male students who have become ensnared in Title IX’s ever-expanding net for campus “sex crimes,” Ms. Speier issued a press release to introduce the Safe Transfer Act, which would require a posting or a warning on the academic transcript of any student found by a college or university to have violated the school’s rules or policies with regard to Title IX’s policies on sexual harassment and assault.
Claiming that the Safe Transfer Act would ensure that accused students who try to transfer to other colleges and universities will face the consequences of their violations, Ms. Speier’s proposed legislation would warn schools that they would “be admitting someone that poses a threat to the students and staff on their campus.”
Endorsed by the National Organization for Women and End Rape on Campus — big players in the extensive campus assault industry — the proposed bill has also been endorsed by the Association of Title IX Administrators, which as built a higher education empire on the backs of innocent male students. While the bill appears to violate the Family Educational Rights and Privacy Act by failing to protect the rights of the accused students, Ms. Speier warns that her bill would ensure that these students would “no longer be able to walk away from campus with a clean academic bill of health.”
Ms. Speier seems to assume that campuses have provided a fair hearing to those who are accused. The reality is that the campus court system that has emerged to address these cases provides little protection for the accused. Under the policies that many colleges and universities have implemented, accused students are often denied a chance to respond to allegations, they are not informed of their options for resolving the complaints, they are not given copies of the incident report or other evidence against them before the hearing, they are not allowed to call witnesses on their behalf, and on many campuses, they are denied full legal representation and the right to cross-examine witnesses.
Perhaps Ms. Speier does not realize that her proposed bill would put colleges and universities at great risk. Just ask administrators at Gonzaga University who ran afoul of privacy protections in a campus sex abuse case more than two decades ago. In that case, a former student at Gonzaga who was an elementary education major and aspiring teacher, was unable to become certified as a classroom teacher because Gonzaga officials told representatives of the state’s teacher-certification office that he had been accused of raping a female student — even though the student he was rumored to have raped denied that she had ever been sexually assaulted.
The male student sued the university for negligence, defamation and invasion of privacy. The court ruled that Gonzaga had violated the student’s privacy and civil rights, and he was awarded $1.15 million by the Washington State Supreme Court.
Last year, InsideHigherEd.com reported that “accused students suing the institutions that suspended or expelled them are now increasingly winning those lawsuits, including 10 ‘legal wins’ in the last year. Some legal experts, including the federal and state judges deciding the cases, say ‘the flurry of recent successes for disciplined students may show how some colleges and universities are eliminating basic procedural protections in an attempt to combat campus sexual assault.’ “
In October, the Office for Civil Rights found that Wesley College in Delaware violated the Title IX rights of a male student who was accused of sexual assault — citing unfair treatment. And federal appeals court revived a lawsuit by a Columbia University male student who alleged that the university had subjected him to sex discrimination during its investigation of a sexual assault report against him. There have also been an increase in the number of pretrial settlements, including those at the University of Colorado at Boulder, Swarthmore, and Xavier in Ohio.
At the same time Ms. Speier is attempting to destroy the future of many young men — many of whom have been wrongfully accused of sexual abuse on their college campuses — President Obama is directing federal agencies to “ban the box” in their hiring decisions — prohibiting them from asking prospective government employees about their criminal histories on job applications. Claiming that the “federal government should not use criminal history to screen out applicants before we even look at their qualifications,” Mr. Obama made the announcement at Rutgers University just a week before the university announced yet another sex abuse lawsuit against two football players who allegedly had sexual relations on campus with an intoxicated woman.
Republican lawmakers — including President-elect Trump’s nominee for attorney general, Sen. Jeff Sessions — have attempted to address the lack of due process for the accused on campus by introducing a bill called the Safe Campus Act, which would require sex abuse complaints to be handled by the police. Under the bill, a student alleging a campus sexual assault may choose whether to keep the accusation from law enforcement, but if he or she does so, then institutions may not initiate disciplinary hearings against the accused. In contrast to the fatally flawed Speier bill, it is a sensible bill that acknowledges that real crimes should be adjudicated in real courts, rather than by untrained campus officials.
Anne Hendershott is professor of sociology and director of the Veritas Center for Ethics in Public Life at Franciscan University of Steubenville, Ohio.